Jim Beam Brands Co. v. Kentucky Importers Pty Ltd. and Another
Read the full judgment text of HCMP 3449/1992 on BabelCite. This High Court CFI judgment.
1. With the agreement of the parties I am handing down this judgment in court.
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HCMP003449/1992 1992, No. MP3449 ----------------------- H E A D N O T E ----------------------- Applications to set aside orders of a master for the examination of four witnesses under ss. 75 - 77A of the Evidence Ordinance and 0.70 of the Rules of the Supreme Court pursuant to letters rogatory issued by a court in the United States. It was submitted on behalf of the defendants that the evidence required was the subject matter of legal professional privilege and/or confidentiality and the requests for the production of documents amounted to a fishing expedition. The applications to set aside the orders were refused, but the orders to produce certain documents were varied to a limited extent.
IN THE SUPREME COURT OF HONG KONG HIGH COURT ------------------
------------------- BETWEEN
------------------- Coram: Hon Jones J. in Chambers Dates of hearing: 16th - 18th November 1992 Date of handing down judgment in Court: 10th December 1992 --------------------- J U D G M E N T --------------------- 1. With the agreement of the parties I am handing down this judgment in court. PRELIMINARY 2. This is an application by the defendants, Kentucky Importers Pty Ltd (Kentucky Importers) and Kentucky Distributors Private Ltd (Kentucky Distributors), to set aside or vary orders made by Master Bokhary on the 27th October 1992 for the examination of four witnesses pursuant to letters rogatory issued by the United States District Court, Northern District of Illinois. The witnesses are Mr Richard Russell, a solicitor and senior partner of Johnson Stokes & Master (JSM), Mr P.R. Nicholls, a solicitor practising on his own account, Mr Robert Kenrick, an accountant and partner with KPMG Peat Marwick (KPMG) and Mr Chris Chan, an officer of the Deutsche Bank (Asia) (Deutsche Bank). 3. Kentucky Distributors is not a party to the American action, but was joined as the 2nd defendant in the present proceedings by an order made on the 9th November 1992 pursuant to 0.15 of the Rules of the Supreme Court on the grounds that it has a direct interest. FOREIGN PROCEEDINGS 4. The proceedings in the United States have been instituted by the plaintiff Jim Beam Brands Co. (Beam), a Delaware corporation, against Kentucky importers, an Australian corporation, for declarations and damages for breach of contract in respect of a distribution agreement dated the 4th June 1990 made between Beam and Kentucky Importers. 5. By the plaintiff's complaint it is alleged that on the 1st July 1985 Kentucky Importers and Beam's predecessor James Beam Distillery Co. entered into a written distribution agreement for three years from the 1st July 1985 to 1st July 1988 as its exclusive distributor of certain distilled spirits in Australia. The agreement was to be automatically renewed for each succeeding three year period unless six months prior notice before the renewal date had been given by either party. The 1985 agreement was in fact automatically renewed for three years from the 1st July 1988 to the 1st July 1991. 6. However, in 1989 Beam decided that it did not want to extend the terms of the 1985 agreement beyond the lst July 1991 as it wanted, to change the terms of that agreement before the six months notice period required for termination of the agreement. As a result, negotiations were held in 1989 and 1990 between representatives of Beam including Mr Winkler, Beam's Executive Vice-President and Mr Wilen, President of Jim Beam Brands International Co. and representatives of Kentucky Importers including Mr Forster, the Chairman and Mr Burt, the General Manager. It is contended that during the negotiations, and in any event prior to the 1st January 1991, Kentucky Importers was given notice by Beam that the 1985 distribution agreement would not be renewed. 7. Subsequently Beam and Kentucky Importers entered into a written distribution agreement on the 12th June 1990 for four years whereby Kentucky Importers was appointed to be Beam's exclusive distributor of certain distilled spirits in Australia. This agreement was executed by Mr Burt on behalf of Kentucky Importers. Beam contends that they proceeded to operate under the terms of this agreement, but this allegation is denied by Kentucky Importers. 8. In February 1991 the legal advisers of Kentucky Importers informed Beam that it refused to observe and perform the terms and conditions of the 1990 agreement on the grounds that Mr Burt had no authority to execute the agreement. It was also asserted, on behalf of Kentucky Importers, that the 1985 agreement was still in effect because Beam had not given six months notice prior to the renewal date of the 1st July 1991. Beam alleges that if Mr Burt did not have authority to execute the agreement it has been ratified by Kentucky Importers' knowledge since June 1990 and by its failure to take any steps to repudiate the agreement before February 1991. An allegation is also made that Kentucky Importers is estopped by its conduct from repudiating Mr Burt's apparent authority. 9. An answer which essentially amounts to a denial of Beam's allegations has been filed by Kentucky Importers together with a counterclaim. MOTION BY KENTUCKY IMPORTERS TO DISMISS FOREIGN PROCEEDINGS 10. A motion by Kentucky Importers to dismiss the American proceedings on the grounds of lack of jurisdiction and forum non conveniens was dismissed. Included in the evidence in those proceedings were affidavits of Mr Winkler, Mr Wilen and Mr Forster. It was as a result of a conflict of evidence between Mr Winkler and Mr Wilen on the one hand and Mr Forster on the other with regard to a certain issue that led to the issue of the letters rogatory. LETTERS ROGATORY Evidence of Mr Winkler and Mr Wilen in opposition to the motion to dismiss 11. Mr Winkler in an affidavit sworn on the 29th August 1991 states that on the 28th December 1978 Beam engaged Mr Forster as its exclusive broker and sales representative in Australia, New Zealand and a number of countries in the Far East for the sale of certain distilled spirits through a brokerage agreement with Kentucky Distributors, a Singapore corporation which had its Principal office c/o JSM in Hong Kong. Under that agreement, Beam sent a monthly account of accruals to Mr Forster c/o Kentucky Importers Australia, and made payments by wire transfer to an account of Kentucky Distributors at the Deutsche Bank in Hong Kong. 12. Both Mr Winkler and Mr Wilen deposed that Mr Forster had personally agreed to the terms of the 1990 distribution agreement and that Mr Burt would make arrangements to finalise the agreement. They also said, that when the terms were agreed, Beam entered into a consultancy agreement whereby Mr Forster agreed to act as a consultant for Beam in respect of markets in the Far East at a fee of $300,000 per annum. This agreement had been proposed by Mr Wilen to Mr Forster to run concurrently with the distribution agreement following Mr Forster's complaint that he would be receiving less income under the terms of that agreement which would be compounded bv his loss of fees that had been paid by Beam under the brokerage agreement of the 28th December 1978. 13. Mr Wilen forwarded copies of the consultancy agreement and notice of termination of the prior brokerage agreement to Mr Burt at Kentucky Importers for signature by Kentucky Distributors. The consultancy agreement and acknowledgment of termination of the brokerage agreement of the 28th December 1978 were signed by Mr P.R. Nicholls as a director of Kentucky Distributors and sent to Beam. Evidence of Mr Forster in support of the motion to dismiss 14. Mr Forster in his affidavit disputed Mr Burt's authority to sign the 1990 agreement and denied having any conversation with Mr Wilen with regard to a consultancy agreement for the Far East. He also denied entering into the consultancy agreement and further denied that he owns a Hong Kong operation by which statement he presumably meant Kentucky Distributors. ALLEGATIONS IN THE LETTERS ROGATORY 15. It is alleged by Beam that the consultancy agreement was for Mr Forster's benefit as Kentucky Distributors was at all relevant times owned by shareholders who held their shares in trust (the Ho Trust) for the benefit of Mr Forster, directly or indirectly, or was a vehicle for his benefit. 16. Beam commenced payments under the consultancy agreement to Kentucky Distributors on about the 13th August 1990 by wire transfer to its account with the Deutsche Bank in Hong Kong. On the 3rd October 1990 Beam received from Kentucky Distributors a request via facsimile that advice of the monthly payment of the "consultant fee" be sent to Kentucky Distributors at an Australian facsimile number. The facsimile indicated that it had been sent by "N. & J. Forster". 17. The plaintiff contends that the trustee of the Ho Trust during 1985 and 1986 was a company known as Industrium Limited and in 1987 and possibly thereafter Prince's Nominees Limited. From 1981 until at least 1988 the Ho Trust borrowed money each year from Kentucky Distributors. 18. Messrs T.J. Gregory, B.S. McElney and R.S.N. Baly were directors of Kentucky Distributors between the 27th November 1978 and the 30th October 1982 and were also partners of JSM during that period. According to the note to the accounts for Kentucky Distributors for 1980 to 1981, the company's ultimate holding company at that time was Windsor Nominees Limited whose registered office was the same address as the address for JSM and whose directors are and at all relevant times were partners of that firm. The existing shareholders in Kentucky Distributors are King's Nominees Limited and Prince's Nominees Limited, both of whose registered offices are at the same address as KPMG and for each company the directors are and at all relevant times have been partners of that firm. Further, one shareholder in each of Prince's Nominees Limited and King's Nominees Limited is the other and the other remaining shareholder in each company is Veritatem Hong Kong Limited whose registered office is the same address as the address for KPMG and whose directors are and have at all relevant times been partners of that firm. King's Nominees Limited was incorporated in 1986 and the founding shareholders were Gregson Limited (Gregson) and Dredson Limited (Dredson), both of whose registered offices are at the same address as the address for JSM whilst the directors of both Gregson and Dredson are and at all relevant times have been partners of JSM. Mr Nicholls signed-as a director of both Gregson and Dredson upon those companies' subscription to King's Nominees Limited memorandum and articles of association whilst Gregson and Dredson were both shareholders in Kentucky Distributors from 1981 until approximately 1983. Evidence of Mr Nicholls 19. Of the four witnesses only Mr Nicholls has filed an affidavit in support of the summonses to set aside or vary the orders of Master Bokhary. However, in his affidavit Mr Nicholls states that both the partners Mr Russell and Mr Kenrick take a neutral position. Mr Nicholls was employed as a solicitor by JSM in about 1979 and later became a partner. He commenced practice as a sole practitioner in June 1989. 20. He states that JSM acted as solicitors for Kentucky Distributors between 1978 and 1988, but only in a legal capacity, and that he was responsible for the affairs of the company between 1978 and about 1985. Mr Nicholls has been a director of Kentucky Distributors since May 1988, but not an executive director. He is the only director resident in Hong Kong. Mr Nicholls says that he merely provides professional legal advice and services as a solicitor, but can, if necessary, execute documents as, a director in order to avoid sending them to Singapore where the company is registered. All the documents that he holds on behalf of the company are held in his capacity as a solicitor and not as a director of the company. He accepts that he signed the consultancy agreement and the acknowledgment of termination of the brokerage agreement of the 28th December 1978 in his capacity as a director of Kentucky Distributors. 21. He complains that the request for documents for himself and the other witnesses are in extremely wide terms and that all the documents relating to himself and Mr Russell are subject to legal professional privilege. He also claims that any oral testimony that he and Mr Russell can give with regard to the affairs of Kentucky Distributors is also covered by legal professional privilege. In fact he states that Mr Russell was never involved in any matter with regard to Kentucky Distributors, nor is any other member of JSM. 22. Mr Nicholls says that KPMG became Kentucky Distributors' accountants in 1979. Since that time he has had frequent contact with them on various issues which he claims are of a private, confidential and legally privileged nature. He has also rendered legal advice to them in respect of the affairs of Kentucky Distributors. As a result, he believes that KPMG owes a contractual duty of confidentiality to Kentucy Distributors under the terms of their apponntment as accountants. He states that Mr kenricl has never been personally involved with the affairs of the company which have been conducted by other menbers of KPMG's staff. Accordingly, he consibers that Mr Kenrick is not a proprer witness to the issues which have Mr kenrick is not a proper whtness to the issues which have arisen. 23. Mr Nicholls went on to say that the Deutsche Bank have been bankers to Kentucky Distributors since 1978 and that as the company's solicitor, he has sent to the bank or to KPMG, for transmission to the bank, various legally privileged documents. He also contends that Mr Chan is not a proper witness to the dispute in the American proceedings. REASONS FOR THE REQUEST 24. It is contended that the existence of the consultancy and the identity of the beneficiary of the agreement constitutes relevant corroborative evidence that is key to the court's determination of the merits of the action at the trial. 25. Each of the four witnesses is required by the American judge to give oral testimony and to produce a number of documents set out in a schedule annexed to the letters rogatory. GROUNDS TO SET ASIDE 26. Mr Thomas, counsel for the defendants, submitted three grounds in support of the application to set aside the orders. First, in respect of Mr Nicholls, Mr Russell and Mr Kenrick, the request prima facie relates to matters covered by legal professional privilege whilst in the case of Mr Kenrick and Mr Chan, the request prima facie relates to confidential matters that are the subject of a contractual relationship of confidence that ought not to be disclosed. Second, the object of the request is not within s.76(1) of the Evidence Ordinance which is not designed to obtain evidence of facts material to the plaintiff's claim, but is an attempt to obtain discovery of documents and is therefore in the nature of a fishing expedition. Third, the request is objectionable because it is not sufficiently shown that most of the documents mentioned exist in the possession of the witnesses so that it is therefore a fishing expedition whilst most of the documents requested are not specified with the necessary particularity. LEGAL PROFESSIONAL PRIVILEGE AND CONFIDENTIALITY 27. Mr Thomas submitted that the defendants are entitled to object to the examination being held on the grounds that all or substantially all the matters to which it is directed are covered by legal professional privilege. He went on to say that all the knowledge, information and documents in the possession of Mr Russell and Mr Nicholls was obtained and retained by them in their professional capacity as solicitors in the course of giving legal advice to their clients. The privilege is also extended to the documents in the possession of Mr Kenrick in his capacity as an agent of the client, who is not a lawyer. He cited In re Sarah C. Getty Trust [1985] 1 QB 956 for the proposition that the scope of professional privilege is broad and that it is not permissible to encroach upon communications that are basically privileged with a view to hiving off from the communications unconnected parts. Mr Thomas placed reliance on Balabel v. Air India [1988] 1 Ch 317 where Taylor L.J. discussed the scope of legal professional privilege at pp. 329 and 330 where he had this to say :-
Later in his judgment at pp. 331 and 332, he said :-
28. In respect of the argument relating to confidentiality, Mr Thomas contended that all the knowledge, information and documents in the possession of Mr Kenrick and Mr Chan was obtained and retained by them as part of a relationship of confidentiality. He submitted that a balancing exercise may have to be performed if there is a public interest that overrides the banker's confidentiality see In re State of Norway's Application [1987] 1 QB 433. and In re State of Norway's Application (Nos. 1 and 2) [1990] 1 AC 723 where Lord Goff, in his opinion at 810 said :-
Mr Thomas also referred me to F.D.C. Co. Ltd. v. Chase Manhattan Bank, N.A. [1990] 1 HKLR 277 as authority for the proposition that a banker's confidentiality is a matter of public interest and is ordinarily protected in Hong Kong when documents are sought for the purposes of an investigation by United States revenue officials. 29. In this case Mr Thomas asserted that the public interest of assisting a foreign court determine a conflict of testimony, incidentally arising in the course of proceedings, is not sufficient to override the public interest in protecting professional confidentiality for the following reasons :-
30. In reply Mr Bleach conceded that the solicitors will be entitled to privilege in respect of legal advice, but not to the blanket claim that has been made to privilege and confidentiality on behalf of all the witnesses. He referred to the services that have been rendered by Mr Nicholls in his capacity as a director of Kentucky Distributors and that he has executed documents that are material to the proceedings in the United States.He also contended that the bank accounts and trust deed are not covered by privilege and that Mr Nicholls must know who is the beneficial owner of the Ho Trust. 31. I agree that the professional advisers will be entitled to privilege with regard to advice that they have given whilst the court is required to protect confidential information received by Mr Kenrick and Mr Chan, but I do not accept that the broad brush approach to these issues as canvassed by Mr Thomas is correct. Each witness, however, may claim privilege under Hong Kong law by objecting to answering a particular question under s.77 (1) (a) of the Evidence Ordinance which provides :-
see In re Westinghouse Uranium Contract [1978] AC 547. 32. Any issue that arises with regard to a claim for privilege or for confidentiality must be raised by the witness before the examiner. Accordingly if a witness refuses to answer any question put to him during the examination pursuant to 0.39, r.10 of the Rules of the Supreme Court, the examiner must state his opinion upon the validity of the objection, but the ultimate decision will be for the trial judge in the United States. Although Mr Nicholls claims, that neither Mr Russell nor Mr Kenrick were involved with the affairs of Kentucky Distributors, no evidence has been filed by either of them to support this contention whilst it appears that, in any event, they are taking a neutral stance. However, I place greater weight on the opinion of the judge in the United States than to the views expressed by Mr Nicholls. If Mr Russell and Mr Kenrick have no information with regard to the affairs of Kentucky Distributors, they are entitled to say so. 33. Whether or not there is a question of crime or fraud raised in the foreign proceedings is irrelevant for the object of the request is to procure evidence for the purpose of civil proceedings. Further, I am unable to agree with Mr Thomas that there is no interest of comity for it is the duty of this court to assist the foreign court if possible, particularly where, as in this case, there is reciprocity for the Hong Kong court to obtain evidence in similar circumstances from the American court. Although Mr Thomas submitted that the issues in the United States can be resolved without probing the affairs of Kentucky Distributors, it is quite clear upon the evidence that this is not correct. I accept that Mr Kenrick and Mr Chan are entitled to the protection of their professional confidences, but the protection does not extend to a blanket claim. 34. Accordingly I am satisfied that the blanket claim for both legal professional privilege and confidentiality must fail. FISHING 35. The request for assistance in obtaining evidence for the American proceedings is set out in s.75 of the Evidence ordinance which provides:-
the High Court shall have the powers conferred on it by this Part." 36. The power of the court to give effect to the application is set out in s.76(1) of the Evidence Ordinance which provides :-
37. Mr Thomas asserted that there is a clear distinction to be drawn between the statutory power to assist a party to foreign proceedings to obtain evidence under s.75 and a roving examination for possibly relevant material such as U.S. pre-trial discovery. He referred to Radio Corporation of America v. Rauland Corporation [1956] 1 QB 618 and to the judgment of Devlin J. at 644 where he said :-
Later in his judgment at 645 Devlin J. had this to say :-
Mr Thomas also referred to the judgment of Kerr L.J. when he described "fishing" in In re State of Norway's Application [1987] 1 QB 433 at 482 in the following terms :-
38. Mr Thomas accepted that the court will be inclined to make orders for testimony that will assist a party to support his own case or contradict the case of his opponent, but that ordinarily this is taken to refer to matters directly relevant to the issues in the case raised between the parties. In this respect, he referred to the speech of Lord Diplock in In re Westinghouse Uranium Contract [1978] AC 547 where he had this to say at 634 :-
39. Mr Thomas went on to question whether the powers under the Evidence ordinance can be invoked to obtain testimony that is not itself relevant to the issue on the pleadings, but is sought to discredit what a prospective witness has said on oath in ancillary proceedings with the result that as it is not evidence that bears on an issue arising in the case, it ought not to be permitted. 40. He submitted that the existence of the consultancy agreement does not form part of the facts in issue on the pleadings so that no issue arises upon the pleadings with regard to the identity of Kentucky Distributors or their beneficiary, or to any agreement which they may, or may not have entered into with Beam at about the time that Beam entered into the distribution agreement with Kentucky Importers. As Beam is not seeking evidence to prove their case because no part of their case depends upon proving that there was a collateral consultancy agreement, it amounts to a fishing expedition for material which might be used in cross-examination to discredit Mr Forster which is objectionable and an abuse of the powers of the court. 41. Mr Bleach submitted, that the request is not made by Beam but by the American judge who is seized of all the interlocutory applications and will be the trial judge. He emphasised that the judge has identified the issues and that the request relates to evidence for use at the trial. Although the evidence is not referred to in the pleadings, it nevertheless was raised in the interlocutory proceedings in support of Kentucky Importers' motion to dismiss on the grounds of jurisdiction and forum non conveniens and its relevance is primarily the concern of the requesting court. In this respect, Mr Bleach referred me to the opinion of Lord Keith in In re Westinghouse Uranium Contract [1978] AC 547 at 654 when he said:-
42. There is clearly no necessity for the consultancy agreement to be referred to in the pleadings because evidence under s. 75 (b) of the Evidence ordinance can be sought either when proceedings have been instituted or when they are contemplated at which stage there will of course be no pleadings in existence. The existence of the consultancy agreement that was referred to in the evidence before the American court in the interlocutory proceedings is undoubtedly material as is the identity of the beneficiary under the Ho Trust. The relevance in the evidence as was stated in the Westinghouse case is primarily a matter for the American court. The issues in fact are clearly before the American court and appear to be material for determination at the trial. In my judgment, the contention that the plaintiff has embarked upon a fishing expedition is unsustainable. The second ground put forward is therefore rejected. DOCUMENTARY EVIDENCE 43. The powers of the court with regard to documents that are required to be produced are set out in s.76(4) (b) which provides- "76.(4) An order under this section shall not require a person-
With regard to the matter of documents, my attention was drawn to certain passages from the judgments in Re Westinghouse Uranium contract [1978] AC 547. In his judgment at p.571 Roskill L.J. said :-
And Viscount Dilhorne at 625 - 626 said :-
The meaning of "particular documents" was also the subject of discussion by Lord Fraser in In re Asbestos Insurance [1985] 1 WLR 331 when he said at 337 and 338 :-
44. The documents that were ordered to be produced by the witnesses are as follows :-
(i) the distribution of Trust assets; and (ii) the borrowing of monies by the Trust from 1981 onwards. Mr Bleach conceded that the whole of paragraph 1 of the notice should be deleted.
Mr Bleach conceded that the words relating to consulting agreement in the first three lines should be deleted. 45. Mr Thomas objected to the requests in respect of each of the four witnesses on the grounds that they are too wide for he submitted that it is in effect a request for discovery rather than an order to produce specific documents. He contended that the requests are not confined to specific documents that would contradict the denials made by Mr Forster that are said to raise the issue of fact on which the court requires the assistance of the court, but range over wide classes of documents that might open a train of enquiry by way of a fishing expedition. He asserted that parts of the requests are roving fishing and do not identify with particularity specific documents with the result that the witnesses will have to exercise their own judgment as to whether or not particular documents are required to be produced. Mr Thomas further submitted that it has not been established that the documents exist or are likely to be in the possession of the witnesses. He further submitted that the use of the words "operation" and "documents" in the notices are too wide. 46. With regard to the request relating to the Deutsche Bank, he said that the request for the telegraphic transfer orders from 1979 goes back too far, and that if this request is allowed, it should be from 1986. However, as the original brokerage agreement was entered into on the 28th December 1978, the plaintiff is quite justified in seeking production of those details since 1979. Mr Thomas also contended that the request in respect of KPMG for details of loans made by Kentucky Distributors to the Ho Trust should be from 1985, the date when he said the first loan was made instead of 1981. However, there is evidence that loans were made to the Ho Trust in 1981 and I am therefore satisfied that this date is correct. 47. From the authorities cited it is necessary to establish that the documents exist or have existed and are likely to be in the possession, custody or power of the witnesses. The documents must be sufficiently identified so that a witness knows what he is required to produce. The words "particular documents" must be given a strict construction and the request must not amount to a fishing expedition. However, a compendious description is acceptable provided that all the documents can be clearly identified. 48. The evidence reveals that the structure of was organised with nominee directors Kentucky Distributors and shareholders for the benefit of the ultimate beneficiary whose identity has not been disclosed. The income of the company would appear to have been totally derived from brokerage fees. Kentucky Distributors is not a trading company and the difficulties expressed with regard to producing accounts as being vague is not justified upon the evidence. 49. The firms of each of the three professional advisers have been involved in the setting up of the structure on behalf of Kentucky Distributors relating to the nominee companies, directors and shareholders and the Ho Trust, and the documents referred to in the notices are likely to be in the possession, custody or power of these witnesses. If they are not, the witness can say so. The documents have been clearly particularised in the notices to produce and relate to evidence for use at the trial. In no way can the requests be described as a fishing expedition in aid of pre-trial discovery. The requests are not too wide or vague with the exception of the word "operation" and the concessions that were made by Mr Bleach to which I have referred. 50. The documents to be produced by Mr Chan of the Deutsche Bank relate solely to the account held in the name of Kentucky Distributors in which evidence is sought with regard to monies coming into the account and their subsequent transfer to the Ho Trust. This evidence is undoubtedly material to the American proceedings and again does not amount to a fishing expedition. The requests are not too wide with the exception of the word "operation"' which is too wide and will be deleted. 51. Those parts in the notices that have been underlined will be deleted. The orders of Master Bokhary are therefore varied to this limited extent. PRACTICE 52. The orders made by Master Bokhary were made under 0.70, r.2(1) of the Rules of the Supreme Court which provides that an application must be made ex parte and must be supported by affidavit. Accordingly,there is no requirement for the applicant to serve any other party to the proceedings, nor a non party such as Kentucky Distributors. In this case, the examination of the witnesses was fixed to take place 12 days after the making of the orders which gave insufficient time for advice to be sought as to whether an application should be made to set aside the orders. Mr Thomas observed that it would be desirable in the future for a master to direct that the examination should no take place for a period of at least 28 days after the making of the order in order to allow adequati time for this purpose. .I agree that this is a reasonable suggestion with the exception that a period of 20 days should be sufficient. However, each case will depend on its own particular circumstances and must remain a matter for the discretion of the master. Further, although the application must be made ex parte, if the facts reveal that a non party has an interest that is directly affected by the making of an order, the master should give consideration as to whether a direction should be made that the non party be given notice of the application 53. In the result and in the exercise of my discretion, I shall refuse the applications to discharge the orders of Master Bokhary. However the orders with regard to the notices to produce documents will be varied to the extent to which I have referred. There will be an order nisi for costs to the plaintiff.
Representation: Mr John Bleach (Dunstan Styles & Co.) for Plaintiff Mr Michael Thomas, Q.C. and Mr P. Ng (Richards Butler) for Defendants |
Further hearings and rulings under HCMP 3449/1992